Competência para legislar sobre as Class Actions nos Estados Unidos: diferenças do sistema brasileiro de tutela coletiva e riscos comuns de retrocessos

Abstract

In the United States, in relation to Class Actions, there is more insecurity and instability in terms of legislation than in Brazil. First, in Brazil most collective actions have constitutional dignity (Public Civil Action is the best example, Brazilian of Federal Constitution, article 129, III), so that here the process of amending the Constitution is very rigid and complex. In the United States, member states are autonomous and can regulate, each in its own way, on Class Actions. However, most States, in practice, adopt the discipline provided for in Rule 23 of the Federal Code of Civil Procedure of the United States. In addition, the US Supreme Court has power, transferred by the US Congress in 1934, to legislate on procedural matters, including evidence. In Brazil, the Judiciary does not have the competence to create rules on procedural law. The competence to legislate on procedural law is exclusive to the Legislative of the Union (article 22, I, of the Brazilian Federal Constitution). The Courts in Brazil have competence only to create their internal regulations, but they do not have it to legislate on procedural law or on evidence. Currently, however, Brazilian Courts have enormous power to create mandatory precedents, especially with the advent in 2015 of Civil Procedure Code (article 927). In Brazil, the member States cannot legislate on procedural law, except on specific rules of procedure or if there is express authorization from the Union via Complementary Statute (articles. 22, sole paragraph, 24, XI, of Brazilian Constitution). However, there are many common risks in the United States and Brazil, in view of the strong movements exerted by economic and political powers against collective actions in Brazil and Class Actions in the United States.